Appeal
from a judgment (denominated order) of the Supreme Court,
Monroe County (Matthew A. Rosenbaum, J.), entered December 2,
2016. The judgment granted the motion of plaintiffs for
summary judgment seeking a declaration that they are not
liable to defendant for the nonsale of a commercial property
owned by plaintiffs, and for summary judgment dismissing the
counterclaims.

It is
hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

Memorandum:
Plaintiffs commenced this action seeking, inter alia, a
declaration that they are not liable to defendant for the
nonsale of a commercial property in Painted Post, New York,
after plaintiffs ended negotiations with defendant. In its
answer, defendant asserted counterclaims for damages based
on, inter alia, breach or repudiation of contract and
promissory estoppel. Plaintiffs moved for summary judgment
with respect to the above declaration and for summary
judgment dismissing the counterclaims against them, and
Supreme Court granted the motion.

Crucially,
although the parties' letter of intent required them to
negotiate a purchase and sale agreement in good faith, it
failed to identify any specific, objective criteria or
guidelines by which to measure the parties' efforts
(see 2004 McDonald Ave. Realty, LLC v 2004 McDonald Ave.
Corp., 50 A.D.3d 1021, 1022-1023 [2d Dept 2008]), and
the unambiguous language of the letter of intent establishes
that neither party intended to be contractually bound or
obligated to negotiate the transaction to completion (see
generally Gerber v Empire Scale, 147 A.D.3d 1434, 1435
[4th Dept 2017]; Pullman Group v Prudential Ins. Co. of
Am., 288 A.D.2d 2, 4 [1st Dept 2001], lv denied98 N.Y.2d 602');">98 N.Y.2d 602 [2002]). According defendant the benefit of
every favorable inference (see Esposito v Wright, 28
A.D.3d 1142, 1143 [4th Dept 2006]), we conclude that the
undisputed evidence in the record demonstrates that
plaintiffs prepared a proposed purchase and sale agreement in
accordance with the letter of intent, and that plaintiffs
thereafter revised the proposed purchase and sale agreement
to incorporate and accommodate requests made by defendant
during several weeks of negotiations. "[S]imply because
those negotiations ultimately failed, it cannot be said that
[plaintiffs] acted in bad faith" (Mode Contempo,
Inc. v Raymours Furniture Co., Inc., 80 A.D.3d 464, 465
[1st Dept 2011]). To the contrary, the evidence establishes
that plaintiffs proceeded within the framework outlined in
the letter of intent and did not renounce its terms or insist
on conditions that were inconsistent with the letter of
intent (see L-7 Designs, Inc. v Old Navy, LLC, 647
F.3d 419, 430 [2d Cir 2011]).

We
reject defendant's further contention that the court
erred in granting the motion insofar as it sought summary
judgment dismissing its counterclaim for breach or
repudiation of contract. In that counterclaim, defendant
alleged that the parties reached a meeting of the minds on
all terms of a purchase and sale even though plaintiffs never
signed a purchase and sale agreement. That allegation,
however, does not support a claim for breach or repudiation
of contract inasmuch as plaintiffs and defendant explicitly
expressed their mutual intent not to be contractually bound
unless and until both signed a formal purchase and sale
agreement in form and content satisfactory to plaintiffs and
defendant and their counsel in their sole discretion.
"[I]f the parties to an agreement do not intend it to be
binding upon them until it is reduced to writing and signed
by both of them, they are not bound and may not be held
liable until it has been written out and signed"
(Scheck v Francis, 26 N.Y.2d 466, 469-470 [1970]).

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